Why Is Congress In Such A Rush To Strip The Library Of Congress Of Oversight Powers On The Copyright Office?

from the what's-the-hurry? dept

In the past few weeks, we've written a few times about this weird urgency among some in Congress to rush through a pretty major change to Copyright Office oversight. I wrote a deep dive piece over at The Verge discussing the issues at play, but Congress is pushing a bill to stop the new Librarian of Congress, Carla Hayden, from appointing a new head of the Copyright Office. Instead, the Congressional plan is to make the position a political appointee, nominated by the President, and approved by Congress. In that Verge piece, we explained why it was a major change, and scratched our heads at the fact that there appears to be no reason for pushing for this change other than (1) the legacy copyright industries know that their lobbying power will mean that the appointment will be to their liking and (2) they fear who Hayden might appoint. But, what's really odd is how quickly Congress is trying to push this through. As if the matter is incredibly urgent. There have been no hearings on the matter. There's been no public discussion on the pros and cons of such a move. Just a mad dash by a bunch of people in Congress to make this change official before Hayden can appoint someone.

Rep. Zoe Lofgren -- who appears to be one of the few people in Congress questioning why this is happening -- has put out a statement highlighting why this move is so problematic. A key point: if there is such a rush to make the change, how does it make sense to put this appointment power in the hands of a President who has left hundreds of federal jobs completely empty without any nominations at all?

... this legislation will harm and delay much-needed modernization efforts by making the Register a Presidentially appointed position. Currently, there is a backlog of 495 Appointee positions that have not even been nominated. This not only will delay effective administration of the Copyright Office, but also puts the efficiency gains made by the Library at risk. Under current modernization plans, the Library believes it can speed up the modernization plan by almost two years and save significant amounts of money. Those plans depend on an active Register of Copyright who is compliant and accountable to the Librarian. The long delay created by this bill in needing Senate confirmation of a Register will only harm these efforts.

In other words, the arguments for "urgency" because the Copyright Register position is currently vacant are undermining their own argument. Considering the nearly 500 federal government positions that have no nominees yet, who actually thinks that Trump will quickly get around to nominating a new Copyright Register, let alone having that person confirmed by the Senate? The current Librarian of Congress, Carla Hayden, on the other hand, has been reviewing candidates for months now and is likely close to having someone in place.

Similarly, as noted above, if (as is the typical line) this move is necessary to "modernize the Copyright Office," this plan does the exact opposite of that. Hayden has already put forth a plan to modernize the Copyright Office (and has experience modernizing a massive library system). But if the Copyright Office boss has to be nominated by a President who doesn't seem to feel like nominating anyone, and then approved by the Senate, the modernization plan will almost certainly be delayed. So why are supporters of this bill in such a rush if it's going to undermine and delay the key reason they give for supporting this bill: the modernization of the Copyright Office? It's almost as if that's not the real reason.

Separately, Lofgren points out that it's crazy to provide less oversight to the Copyright Office right after it's been revealed that one reason why Hayden likely fired the the previous Copyright Register was because of incredible mismanagement by the previous Register, that included a modernization program that was budgeted for less than $2 million, but ended up spending nearly $12 million before being dumped with nothing to show for it (as we first revealed here on Techdirt).

Removing Dr. Hayden’s ability to appoint the Register of Copyrights means she will be unable to hold employees accountable, and it creates uncertainty and ambiguity in the chain of command between the Librarian and Register of Copyrights.

The previous Register of Copyrights was removed after a Library of Congress Inspector General report found the Copyright Office not only wasted six years and nearly $12 million but hid this information from Congress, falsified information in reports to the Library, and submitted fake budget numbers for annual appropriations requests.

Dr. Hayden took appropriate steps to remove the Register responsible for this mismanagement. This bill would prevent Dr. Hayden from removing or ensuring accountability in any future Register by making the Register answerable only to the President -- a fundamental change in the relationship between Librarian and Register.

Finally, Lofgren notes that it certainly is at least notable and unfortunate that this move to rush through this change certainly appears to be an attempt by Congress to undermine the authority of the first female and first African American Librarian of Congress.

Finally, the bill is a clear affront to the first female Librarian of Congress. Dr. Carla Hayden is not only one of the most highly qualified Librarians ever to serve, but has also worked aggressively and in good faith to pull the Library and Copyright office into the 21st century. I find it deeply disturbing that for the first time in history, a female and a person of color is the Librarian of Congress, and for the first time in history, Congress would take away her power in order to give it to Donald Trump. While this does not point to motive, it is a distressing fact nevertheless.

This bill is a vote of ‘no confidence’ in a Librarian who is aggressively pulling the Library and Copyright Office into the 21st century and, by all evidence, justifiably reassigned an ineffective and negligent Register. It will only serve to delay Copyright Office modernization, harm the public, harm content creators, increase tension between the Library and Copyright Office, and harm Copyright Office employees.

Indeed. There are certainly arguments to be made for changing things up, but no one pushing for this bill seems to be able to answer why this needs to be changed so quickly, when such a change clearly undermines their own stated reasons for supporting the bill. From that, the most logical conclusion is that they are pushing for the change because they are worried about who Hayden is likely to appoint, rather than because of any principled argument.

Reader Comments

You need to ask?

The current Librarian of Congress, Carla Hayden, on the other hand, has been reviewing candidates for months now and is likely close to having someone in place.

If Carla Hayden has already filled the position they would then have to justify removing that person to replace them with someone of their own choosing, which would be a harder sell as they'd have to come up with some good reason to do so.

By preempting Hayden though the choice is entirely in their hands, and the delay might actually be a part of the plan, as it keeps the position empty, and therefor unable to do any 'harm' to those that own them, allowing the biddi- ... donatio- ... 'helpful advice' as to who is more 'qualified' to the position to pour in from 'concerned parties'.

Cartoon mouse....and copyright trolls/RIAA!

You know, if the copyright office can rapidly and easily determine if something is or is not copyrighted, copyright trolls (and the RIAA, which seems to be sponsoring Rightscorp, and it's sister the MPAA) will actually have to REGISTER the copyrights they sue over.

We can't actually require hollywood to follow the law as written, now can we???

Re: Cartoon mouse....and copyright trolls/RIAA!

Re: Re: Cartoon mouse....and copyright trolls/RIAA!

Thad:

What I said above is that a thoroughly modern copyright office, with systems in place similar to those of the patent office, where if I give you a few bits of information about something I claim is copyrighted and the office can retrieve it, represents a threat to copyright trolls, because it would be trivial to show when and whether a copyright was registered. Typical copyright trolls such as Malibu Media/Xart don't bother with such niceties, and would see their court cases rapidly shut down if courts were to first require registered copyrights.

There is emerging evidence, through MPAA support of rightscorp, that the current copyright trolling craziness is supported by hollywood.

It also represents a threat to the traditional music business, because there might be independent record keeping on the tangled web of rights involved in a typical vinyl album. It would also make demonstrating that some copyrighted work was itself a copy of something much easier.

Re: Re: Re: Cartoon mouse....and copyright trolls/RIAA!

if courts were to first require registered copyrights.

IANAL.

I'm pretty sure that decision is not within the purview of the courts.

To sue for copyright infringement, under legislation (i.e. not something within the courts common law or rules of procedure jurisdictions) all you need is a valid copyright, and that does not require registration. I suspect it would be a breach of the Berne convention to require registration to have a valid copyright.

As far as I understand it, all registration does over and above having a non-registered copyright, under legislation, is allow you to sue for statutory damages, the "up to $150k per infringement" often quoted, from the date of registration.

Without registration, you can still sue to stop the infringing behavior and for actual damages only. The downside of actual damages is that the plaintiff has to give a $ number that they can back up in court with evidence of the actual damages, actual lost revenue, documentation, accounts, expert witnesses and so on. As opposed to statutory damages which don't require any evidence of actual damages, they can pull a number out of their ass up to the $150k per infringement limit and let the judge decide the final number without any evidence beyond the fact that infringement took place.

Re: Re: Re: Re: Cartoon mouse....and copyright trolls/RIAA!

It's not strictly within FRCP, but....pleadings *do* have to plausibly allege things, and if registration is trivially checked, can you imagine the fun Booth Sweet will have when the pleadings don't contain the registration data?

That could soon morph into something that *any* competent pleading has to include, or risk being dismissed with a fee award as its exclusion would be strong evidence of vexatious litigation.

Re: Racism

That ship has sailed. There's a plethora of incidents in which Trump's — and his GOP cohorts' racism has been exposed. However, as Lofgren has noted, I doubt that this is a specific jab at Hayden because she is an African-American woman. I think this is about getting an **AA bootlicker in place to rubber-stamp their requests. Imagine Ajit Pai in the Register's job. That's what they're planning. Anyone want to stake a tenner on it? I totally would.

Re: Re: Racism

My thoughts exactly.

"... who actually thinks that Trump will quickly get around to nominating a new Copyright Register, let alone having that person confirmed by the Senate?"

I do. If there are people rushing to make this happen, you better believe they have already bought and paid for the person they want to get appointed, and the clown in chief already knows who he's supposed to tap.

Re:

Re:

Heh. Really? Chris Castle? The guy who is so angry at Google he forgot he was using free web hosting from Google for years? He's... not the most credible voice, though it's no surprise he's hooked up with that nutty group.

Anyway, the crux of his argument is "why didn't Hayden violated basic HR confidentiality rules and reveal why she fired Pallante." Maybe it's because Hayden actually has principles, and even as people are pushing bogus conspiracy theories about why she fired Pallante, she took the high road and refused to publicly slam Pallante?

Re:

It'd pretty obvious this is a racist, sexist, political move

There's no way that the old rich white racist misogynists in Congress can allow a highly-qualified, highly-intelligent, highly-experienced black woman -- selected by Obama -- to wield power. That's intolerable. Instead, she has to be stripped of power and THEN blamed for not using it as they wish she would have.

HR 1695 is not about protecting big media's profits, it about protecting an individual's right to have and protect inspiration from being stolen. Congress has the constitutional right to protect creator's inspiration.

Enough of this anti-copyright crybaby, grow up and follow the Amazing World of Gumball's song "Be your own you" which teaches Americans to think original and not make fan works.

Re: Lofgren

Lofgren is a woman, so if she hates men (she doesn't AFAIK) she'd be a misandrist. Learn what words mean.

*HR 1695 is not about protecting big media's profits, it about protecting an individual's right to have and protect inspiration from being stolen. Congress has the constitutional right to protect creator's inspiration.*

Wrong on multiple levels: copyright infringement is not theft. Secondly, **inspiration?** Are you on crack? Inspiration is not "protected" and cannot be stolen. The purpose of copyright is to restrict to the creator the right to earn money from his or her creation for LIMITED TIMES. The limit keeps rising and is well past the creator's lifetime.

*Enough of this anti-copyright crybaby, grow up and follow the Amazing World of Gumball's song "Be your own you" which teaches Americans to think original and not make fan works.*

You must be on some kind of mind-bending drug, it's the only explanation for this twaddle. A song can't teach anyone to "think original." In any case no cultural artifact is created in a vacuum. Therefore all works are ultimately fan works, whether they be of actual history or of works created by others.

Considering the nearly 500 federal government positions that have no nominees yet, who actually thinks that Trump will quickly get around to nominating a new Copyright Register, let alone having that person confirmed by the Senate?

I'm pretty sure the priority and speed of specific nominations is directly proportional to the size of the campaign contributions.

That question is quite rhetorical, no? Though that part about female African-American seems perfectly good as one of the motives considering Republicans have the majority now (and the White House) and it seems they are generally bigoted assholes (with exceptions of course and this doesn't mean Democrats are good). Mind you I don't care about partisan bullshit neither in the US nor in my country but if this is not the case then the Republicans are doing it wrong because this is my perception.